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It’s on: The Prosecutor of the International Criminal Court just announced that her office has begun a preliminary examination into events that occurred in Venezuela “at least since April 2017.” It’s a good first step — but it’s just that, one step along a very long road ahead. Here’s what to expect.

First things first, a preliminary examination is just that, an examination of the facts presented to the Office of the Prosecutor (OTP). It’s a preliminary step to see if there should be an investigation; the goal here is to determine if there’s enough of a factual basis, from the standpoint of jurisdiction, admissibility and the interest of justice to recommend to the Court the opening of a formal investigation, in our case, for crimes against humanity. Then see if the date, place and people involved all fall within the jurisdiction of the Court and, finally, determine if the case would be admissible.

Keep in mind, the ICC has 11 cases currently in this stage of proceedings. Some have been under preliminary examinations since 2003, as it’s the case with Colombia. Venezuela has been under PE before, over the events occurring since July 1, 2002, and the OTP decided against pursuing an investigation. Like many international organizations, the ICC is under-budgeted and short staffed; things move slowly.

If the OTP decides to ask the ICC’s Pre-Trial Chamber to officially open an investigation and issue arrest warrants — and assuming those arrests occur — the Court still has to review if there are merits to go to trial for each defendant. It then has to try the case and allow appeals before sentencing and executing the ruling. The process takes years at best, potentially decades.

While we may want retribution for all our suffering, it may not be the best idea to pursue every single wrongdoing de aquí a Pekín. The country will need to heal.

And there’s one snippet you may have missed: the OTP said that it would also look at violence coming from protestors. Sure, this is the OTP trying to show its impartiality, which the Rome Statute demands. However, this may be cuchillo pa’ nuestra garganta in the sense that it may excuse certain individuals or actions from responsibility on account of self-defense, as general principles of criminal law are fully applicable to international criminal proceedings.

The other thing we need to think about is immunities, or that little pebble in your shoe which states that under customary international law, sitting heads of state and other high-ranking officials may enjoy immunity from prosecution before international courts, or courts of other states. And if, as is the case of the Rome Statute of the ICC, there is an express provision to the contrary, you may find that states nonetheless will deny the ICC assistance in apprehending a guy like Maduro.

Proving guilt beyond reasonable doubt is a long and tedious road that doesn’t always arrive to a satisfactory destination. The ICC isn’t magic; it’s a plodding, slow, rule-bound, lawyerly bureaucracy. While we may all be sure that there is a chain of command and that all orders come down from a smoke filled room where the red guanabana sits, some crimes will not be attributed to higher-ups.

And while we may want retribution for all our suffering, it may not be the best idea to pursue every single wrongdoing de aquí a Pekín. The country will need to heal. I don’t want to get into the complicated mess that is transitional justice, but forgiveness and reconciliation will have to start somewhere, and there’s an argument to be made that the ICC hinders that process as often as it enables it.

So yes, there’s good news from the land of the tulips. But the road ahead is long, and may be full of surprises we won’t always like. Keeping expectations grounded is a good way to avoid unnecessary frustration.

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7 COMMENTS

  1. A trial of this sort isnt just about getting a favourable sentence that serves justice and that can be enforced , instead its like putting up a spectacle in which all the crimes of the regime are exposed and publicised to the world for year and years , making people keep their attention focused on the regime and its many crimes , , day after day , adding slashes to its reputation until it is reduced to tatters, its a powerful propaganda weapon of attack , decisions will be taken by world opinion and international bodies on the basis of what is revealed here ……, so the end result is justice but not inmediately that which is produced in ordinary courts !!

    • There’s an aspect to your post here, and probably others you’ve made, that I haven’t noticed:

      You’re putting Tillerson’s decision-making on this as equal to Trump’s, who has the final word of course, but you’re affirming that Trump will listen to and follow his expertise and advice.

      I like that thinking, and agree with it.

  2. OBJECTION!! Counsel for the counsel has not been permitted to speak!! As advocate for the Devil, I urge the public opinion about the ICC to consider this: https://panampost.com/sabrina-martin/2018/02/07/what-is-behind-the-international-criminal-court-a-carousel-of-lies-and-on-paper-victories/

    Exaggeration, there, court-room histrionics. The article puts things mildly. As Bill said above, it’s not about an arrest, a trial, and sentencing, but more a stage upon which the world spectates, a black mark against those who are called to stand on that stage.

    When you need the police, there aren’t enough of them; but when you park in the wrong spot and get a ticket, then it’s different. I think the line is similar on a world court body. On one hand, it looks like they don’t have enough “bite”, but do we want a stronger body to sit in judgement of everything, and who would be judging? The United Nations is a good thing to some, and a useless thing to others. I can’t resolve this for myself quite yet. How are obvious criminals pretending to be heads of state permitted to get away with what they do? But do we really want a “Big Nanny” watching over every move every nation may make, getting “critical” and supplanting legitimate national interests, governing governments? I think it’s all an issue of individual responsibility of ALL players, everywhere, so that we do not get the tyrants and dictators. With no crimes, there is no prosecution necessary.

    Question is: Is the ignominy of being brought to the consideration of the ICC effective? Does it do anything? Just guessing, here, but it would seem that at the least it would give apologists and fence-sitters pause to consider their positions.

  3. Trials of this kind are done to showcase to the world the malignity of those who are put on trial , beside their formal function they also serve a pyschological and propaganda purpose ,when interest in the holocaust was flagging Israel decided on the dramatic capture and trial of Eichman to put the holocaust again on everybodys mind , their international image hinged on reminding the world of their atrocious victimization by the nazis, they couldnt let the world become absent minded about that , Same thing that Stalin did when he put to trial a bunch of innocent comrades from the old times accusing them of unexisting crimes , the idea was not just to get rid of them , there was no reason for that except that the moscow trials made people in russian aware that they were still fighting a war against the enemies of communism and that heads would roll making comrade stalin even more feared than before ….!! People think of trials as vehicles of justice , and they can be that but they can also in paralell serve other purposes ……., this trial will create headlines for quite some time to come, kindling the peremnial loathing of a regime that has wantomly destroyed lives, the lives of 30 million Venezuelans !!

  4. By the time the World Court resolves the crimes in Venezuela many of the folks reading this blog will no be able to do so due to something called the human life span.

  5. “And while we may want retribution for all our suffering, it may not be the best idea to pursue every single wrongdoing de aquí a Pekín.” Im gonna have to disagree with you there, hopefully we’ll pursue every single big chavista honcho psycopath from here to Alpha Centauri.

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